54:0090(13)AR - - HHS, FDA, New Orleans, LA & NTEU Chapter 210 - - 1998 FLRAdec AR - - v54 p90



[ v54 p90 ]
54:0090(13)AR
The decision of the Authority follows:


54 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

______

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

FOOD AND DRUG ADMINISTRATION

NEW ORLEANS, LOUISIANA

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 210

(Union)

0-AR-2861

______

DECISION

April 30, 1998

______

Before the Authority: Phyllis Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members

Decision by Member Donald S. Wasserman for the Authority

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Ed W. Bankston filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Agency claims that the Arbitrator exceeded his authority when he rendered an award concerning the following issue:

"may union stewards on 'bank time'(1) elect to meet off-site without management concurrence?"

Award at 4. Specifically, the Agency claims that the Arbitrator made findings and ordered a remedy regarding "issues not grieved," i.e., regarding the adequacy of office space provided to the Union. Exceptions at 28.

For the reasons set forth below, we agree with the Agency and set aside the portion of the award that addresses an issue not placed before the Arbitrator.

II. Background and Arbitrator's Award

The Union is represented by four stewards who all work at the New Orleans District Office. Award at 12. The stewards scheduled a meeting for May 22, 1995, and requested "bank time" for purposes of the meeting. The Agency approved the request and provided a conference room as a meeting place for the stewards. Id. The stewards found the conference room unsuitable, and they arranged to go off-site to meet. On the morning of May 22, 1995, the District Director informed the stewards that they would be put in Absent Without Official Leave (AWOL) status if they met off-site. The four stewards nevertheless met off-site on the morning of the 22nd and returned to the work site at around noon. Id. at 13. On May 24, 1995, the stewards were put on AWOL for the morning of May 22. Id.

As a result of mediation, the AWOL charges were withdrawn. However, the question remained as to whether off-site meetings were appropriate. The matter was placed before Arbitrator Bankston for resolution.

The Union identified the issue to be: "Does the collective bargaining agreement as supported by past practice permit stewards to hold meetings off-site?" Id. at 4 (quoting Union Brief at 7). The Agency suggested that the issue should be:

may shop stewards leave their duty stations without the prior approval of their supervisors once their request for "bank time" is approved and the chapter president "authorizes" their absence from the job site, without obtaining the approval of management?

Id. (quoting Agency Brief at 1). Upon consideration of the parties' different versions, the Arbitrator framed the issue as noted supra Part I, i.e., "may union stewards on 'bank time' elect to meet off-site without management concurrence?" Award at 4.

In his decision, the Arbitrator rejected the Union's claim that off-site meetings on bank-time were a past practice. In doing so, the Arbitrator stated that there was no "unequivocal" practice of permitting off-site meetings on bank time in the absence of management concurrence. Id. at 21. Further, the Arbitrator determined that the failure to restrict off-site meetings in the collective bargaining agreement (CBA) did not create the right to such meetings. Id. at 23. He also rejected the Union's argument that the denial of off-site meetings on bank time constituted a violation of the stewards' statutory rights. Id. at 24. This last determination was based on his conclusion that the meeting did not constitute protected activity, since the off-site meeting was not sanctioned by past practice, the CBA or management concurrence. Id.

The Arbitrator determined that the "crux of the matter" was the appropriateness of the office space provided to the union for its meeting. Id. at 24-25. Thereupon, the Arbitrator analyzed sections of the CBA involving the Agency's obligation to provide suitable office space to the union. Id. at 26-28.

The Arbitrator's Award ultimately rejected the Union's grievance regarding off-site meetings on bank time without the concurrence of management. Id. at 29-30. In his "findings of fact," however, the Arbitrator found a violation of the contractual requirements of Article 10 to provide adequate office space. Id. at 29. In his Award, the Arbitrator determined that "[w]ith respect to the finding that the Agency is in violation of the Agreement by its willful failure to provide union office space, the grievance is to be remedied" by the order to the Agency to "permanently 'provide reasonable, adequate, and secure office space' to the Union" within 30 days. Id. at 30.

III. Positions of the Parties

A. Agency's Exceptions

The Agency claims that

[t]he Arbitrator's Award is deficient pursuant to 5 U.S.C. § 7122(2) on...grounds similar to those applied by Federal courts in private sector labor-management relations, namely, on the grounds that the award exceeded the arbitrator's authority because the arbitrator resolved an issue not submitted to arbitration.

Exceptions at 24. Specifically, the Agency argues that the Arbitrator erred when he found a violation of Article 10 regarding office space, when that matter was not included in the issue nor briefed by the parties. Id. at 25.

B. Union's Opposition

The Union acknowledges that "[a]n Arbitrator's decision may be held deficient when the arbitrator exceeds his authority by resolving an issue not submitted to him." Opposition at 6. However, the Union contends as follows:

Arbitrator Bankston determined that the Union could not meet off-site without management concurrence. His decision was grounded in Article 10 of the Collective Bargaining Agreement which requires that Agency to provide the Union with suitable, permanent office space. The arbitrator found that the "matter of office space is crucial to the issue" and identified the gravamen of the case as "just what sort of space is it to which the Union is entitled under the Agreement (Opinion and Award 24, 26)." He found that the Union had agreed to utilize union office space provided by the contract and that agreement precluded the need and the right to hold meetings off site.

Id. at 4. In other words, the Union contends that the Arbitrator properly looked at the Agency's compliance with its general obligation to provide adequate office space in connection with the Union's meetings off-site or on-site. The Union contended that the Arbitrator "found that the Union had agreed to utilize union office space provided by the contract and that agreement precluded the need and the right to hold meetings off-site." Id.

The Union states that the office space issue was litigated before the Arbitrator, citing the presentation of evidence "regarding the inadequacy of the space offered by management, the lack of privacy accorded to Union activities, and management's willful failure to provide office space[.]" Id. at 7 (citations to transcript omitted). The Union notes that the Agency did not object to the introduction of that evidence. Id. The Union contends that the award is consistent with the collective bargaining agreement and does not "add to, subtract from, disregard, alter, or modify any terms of the agreement[.]" Id. at 8.

As an alternative argument, the Union states that, at worst, there is an ambiguity in the award, which should warrant a remand rather than vacating the award. Id. at 6-7 n.5.

IV. Analysis and Conclusions

An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995).

An example of an arbitrator exceeding his authority is found in Veterans Administration and American Federation of Government Employees, Local 2798, 24 FLRA 447 (1986) (Veterans Administration). The issue before the arbitrator in Veterans Administration was whether the agency's termination of the grievant complied with the parties' collective bargaining agreement and applicable laws and regulations. The arbitrator concluded that the agency's action did not violate the collective bargaining agreement or applicable laws and regulations, but nonetheless went on to order the agency to inform the grievant of agency vacancies and to allow him to apply for those vacancies. The Authority held that the arbitrator exceeded his authority by failing to confine his decision and any possible remedy to the issues submitted as he unambiguously framed them. See Veterans Administration, 24 FLRA at 451.

In applying the principles set forth above and concluding that the arbitrator exceeded his authority, the Authority stated the following:

The [a]rbitrator clearly specified the issue on the merits to be whether the grievant's termination was in violation of the collective bargaining agreement or applicable law and regulation and, if so, what remedy [was] appropriate. When the [a]rbitrator answered precisely that issue by concluding that the grievant's termination did not violate the agreement or any applicable law and regulation, the [a]rbitrator had decided the merits of the issue submitted to him. By further ruling that the grievant be informed of and be allowed to apply for agency vacancies and directing the remedial relief . . . the [a]rbitrator exceeded his authority by deciding, and awarding a remedy concerning[,] an issue not submitted to arbitration. . . . Arbitrators may legitimately bring their judgment to bear in reaching a fair resolution of a dispute as submitted to or formulated by them, but they may not decide matters which are not before them.

Id. (emphasis added).

The Au